Date of Filing:30/04/2017
Date of Order:16/04/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 16TH DAY OF APRIL 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.676/2016
COMPLAINANT/S | | |
| | Dr.Mahesh Kariyappa, Son of Sri Dr.Kariyappa, Aged about 45 years, Address at Ramakrishna Nursing Home, No.757/35, 8th Main, P.J. Extension, Davanagere-577 002 (Sri PNR Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 | MaxWorth Realty India Limited, A company incorporated under The provision of the Companies Act 1956, having its office at “ KMP House”, No.12/2, Yamuna Bai Road, Madhavnagar, Bengaluru-560 001. (Sri BCP Adv. for O.P) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (hereinafter referred to as O.P) alleging deficiency in service and to direct the O.P to pay a sum of Rs.5,02,000/- along with interest at the rate of 24% per annum from 10.1.2013 to 11.05.2013 a sum of Rs.3,71,580/- in all Rs.8,71,580/- and further interest at 24% per annum on Rs.5,02,000/- and also pay Rs.5,00,000/- towards compensation and to award cost of the proceedings.
2. The brief facts of the complainant’s case is that, O.P has formed a residential layout known as ‘Max Residency Phase-III” in Thindulu Village, Kundana Hobli, Devanahalli Taluk. On 5.1.2013 the O.P for allotted of site bearing No.20 measuring 30 X 40 feet on receiving a application fee of Rs.1,00,000/-. It was agreed to sell and purchase the said site for Rs.10,20,000/- and agreement to sell was executed on 14.6.2013. The complainant has paid Rs.5,02,000/- on different dates and different cheques acknowledged by the O.P. In terms of Agreement of sale dated 14.06.2013 the O.P was required to execute a registered sale deed in favour of complainant within 6 months from the date of execution of agreement of sale. Despite receipt of the aforesaid sums, till date the O.P has not registered the Sale Deed in favour of complainant as promised by them. Legal notice was also issued in this regard on 7.1.2016 demanding him to perform the conditions of the sale agreement. The same was served on the O.p on 9.1.2016, who has replied the same by informing him that they were some legal issues pending regarding the land on which layout to be formed its registration and the pendency of the case before the Hon’ble High Court. It is clear from the said legal notice that the O.p cannot sell the site agreed to and hence there is a deficiency in service. In the reply notice O.p informed him that he would deduct 15 % out of the amount paid in order to repay the amount/cancellation of the booking which is without any justification and hence he had to issue a rejoinder notice.
3. It is further contended that, he is a practicing medical doctor residing at Davanagere and he has put in his hard earned money to have a house in Bengaluru. The O.P has duped him without giving a clear picture of the situation of the legal rights over the property. O.P cannot forfeit any money from the amount given by him since O.P has defaulted in honouring the terms and conditions of the agreement of sale. Hence the complaint.
3. Upon service of notice O.P appeared before the Forum and filed his version and denying averments and contents of complaint.
4. It is further contended in the version that complainant is not a consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act. He has not availed the service of the O.P for his livelihood. In order to benefit some third party he has booked a site. The amount given to him is not the hard earned money of the O.P. It is only given to him in order to investing the property and to make gain out of it. It is a benami transaction. This Forum has no jurisdiction to try and settle the matter. He is not a consumer. He cannot file this complaint. He has specifically intimated the complainant that he cannot cancel the order after booking the same. Law also do not recognize such cancellation. In the reply to the notice he has clearly stated that, he would pay the amount advanced by the complainant and he has to come and receive for which the complainant issued a rejoinder rather than coming and receiving the money.
5. In order to prove the case, the complainant and O.P filed their affidavit evidence. Perused the documents produced. Heard the counsels for the parties.
6. On the basis of the above pleadings and evidence of the parties, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT 1): Affirmative.
POINT 2): Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. The same has been objected by the O.P contending that he is not a consumer and he has invested the amount in real estate and that he is not entitle to the full amount paid by him in terms of the agreement of sale.
9. O.P has also filed his affidavit evidence reiterating the facts mentioned in its version.
10. On perusing the evidence of both the parties and documents produced it is admitted by O.P that complainant has booked site bearing No.20 in the layout formed by the O.P. by receiving a sum of Rs.5.02,000/- on different dates. The booking order, copy of receipt, copy of cheques and the agreement of sale and exchanges of notices clearly go to show that O.P has receive Rs.5,02,000/- from the complainant and in terms of the agreement of sale has not executed a sale deed in his favour which is clear violation of the terms and conditions of sale agreement. When O.P himself has not honoured the terms and conditions of the sale agreement he cannot expect to other party to follow the same in respect of refund of the amount advanced.
11. In view of this the O.P is bound to repay the advance amount received by him i.e. Rs.5,02,000/- to the complainant.
12. The counsel for the complainant has relied on Consumer Protection Reporter reported in 1991 page 532 reads thus:
“NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI,
Smt.Sneh Chadda - Appellant Vs. Delhi Development Authority – Respondent in First Appeal No.2 of 1990 – Decided on 04.04.1990
Consumer Protection Act, 1986 – Section 2 – Petitioner, an allottee of a flat from the Opposite Party is a ‘Consumer’ entitled to seek redress from the State Commission dismissing complaint on this preliminary ground is liable to be set aside.”
And in 1993 (2) Page 67 reads thus.
“STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
J.P. SINGH - - Appellant Vs. Improvement Trust, Ludhiana – Respondent in Appeal No.56 of 1991 – Decided on 10.09.1992
Consumer Protection Act, 1986 – Section 2(1) (d) & 2(1)(o) - Consumer – Complainant applied for a plot in the scheme and deposited Rs.1,000/- - He was declared unsuccessful by draw of lots – Claim for allotment of plot – Argument that complainant is just an applicant and not a consumer is fallacious – Complainant has hired services for consideration – Order of the District forum dismissing complaint on the preliminary ground that complainant is not a Consumer is liable to be set aside. 9Para 5 & 6).”
On perusing the same it becomes clear that the said decisions are also applicable also to present case on hand and hence the complainant is a consumer who is seeking services of the O.P for consideration. Hence O.P’s objections that complainant is not a consumer and this complaint is not maintainable cannot be accepted.
13. O.P has taken a contention that the amount paid by the complainant is not his hard earned money and it is a banami transaction. To substantiate the same he has not placed any materials before this Forum. Further if it is a benami transaction according to O.P., O.P has also participated knowingly well it is a benami transaction than O.P has to be prosecuted under the Benami Transaction Prohibition Act. In view of this we are of the opinion that complaint and the complainant are bound to succeed in this case. Hence we answer Point No:1 in the affirmative.
ON POINT No.2:
14. The complainant has claimed interest at the rate 24% per annum on Rs.5,02,000/- from 10.01.2013, the last installment paid by him is on 11.06.2013, hence we are of the opinion that the interest at the rate of 12% per annum if ordered to be paid from 11.06.2013 onwards till O.P pay to the complainant the full amount ends of justice will be met.
15. Though O.P has stated in the reply and in the version that he is ready and willing to repay the amount, he is not prudent enough to show his bona-fides that he is ready with money. If at all he was prudent he would have produced the cheque or demand draft to be paid to the complainant, he has not done so. In view of this it is to be held that it is only for the sake of defence O.P. is taking such a stand.
16. Due to inaction of the O.P in not forming the layout, in not executing the sale deed in respect of Site No.20, in not returning the advance amount received, there is deficiency in service rendered by the O.P which made the complainant to approach this forum by engaging counsel paying his professional fee and attending the Forum by coming all over from Davangere by spending money, time and energy for which he has to be compensated. Thought there is no clear cut evidence regarding what damage he has suffered, it cannot be held that he has not at all suffered any damage. The complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.50,000/- besides ordering him to pay a sum of Rs.25,000/- towards the legal expenses. Hence we answer Point No:2 in the partly affirmative and pass the following:
ORDER
1. The complaint is partly allowed with cost.
2. The OP i.e. Max Worth Reality India Limited Represented by its Deputy General Manager/Authorized Signatory is hereby directed to pay a sum of Rs.5,02,000/- along with interest at the rate of 12% per annum on the above sum from 11.06.2013 till payment of full amount.
3. Further O.P is also directed to pay Rs.50,000/- towards damages and Rs.25,000/- towards cost of the litigation expenses to the complainant.
4. The O.P. is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 16th Day of April 2018)
MEMBER PRESIDENT
*Rak
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 Dr.Mahesh Kariyappa – Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1: 5.1.2013:Copy of Booking Form.
Doc.No.2:5.1.2013: Copy of Receipt.
Doc.No.3: 10.1.2013:Copy of Cheque bearing No.266984.
Doc.No.4: 12.4.2013: Copy of Receipt.
Doc.No.5: 3.4.2013:Copy of DD bearing No.257694.
Doc.No.6:14.04.2013: Copy of Receipt.
Doc.No.7:4.4.2013: Copy of cheque bearing No.521145.
Doc.No.8: 4.4.2013: Copy of cheque bearing No.521146.
Doc.No.9: 12.4.2013: Copy of Receipt.
Doc.No.10: 5.4.2013: Copy of DD bearing No.258242.
Doc.No.11: 12.04.2013: Copy of Receipt.
Doc.No.12: 5.4.2013: Copy DD No.258243.
Doc.No.13: 14.06.2013: Copy of Agreement of Sale.
Doc.No.14: 31.07.2013: Copy of Receipt.
Doc.No.15 : 31.07.2013: Copy of Receipt.
Doc.No.16: 31.07.2013: Copy of Receipt.
Doc.No.17: 31.07.2013: Copy of Receipt.
Doc.No.18: 31.07.2013: Copy of Receipt.
Doc.No.19: 07.01.2016: Copy of Legal notice.
Doc.No.20: 9.1.2016: Reply Notice.
Doc.No.21:19.2.2016: Copy of 2nd Legal notice.
Doc.No.22: 20.2.2016 Copy of Postal receipt.
Doc.No.23:18.04.2016: Copy of endorsement issued by the
Department of posts.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1 : Mr.Roopesh Sulegai, Deputy General Manager of O.P.
Copies of Documents produced on behalf of Opposite Party/s
- Nil-
MEMBER PRESIDENT
Date of Filing:30/04/2017
Date of Order:16/04/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 16TH DAY OF APRIL 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.677/2016
COMPLAINANT/S | | |
| 1 | Shashidhar U.G., S/o Sri K.Gangadharppa, Aged about 37 years, Residing at No.6, Anugraha Nilaya, Behind Maramma Temple, Virupakshapura, Near Kodigehalli Railway Gate, Bengaluru 560 097. (Sri PNR Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 | Max Worth Realty India Limited, A company incorporated under The provision of the Companies Act 1956, having its office at “KMP House”, No.12/2, Yamuna Bai Road, Madhavnagar, Bengaluru-560 001. (Sri BCP Adv. for O.P) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (hereinafter referred to as O.P) alleging deficiency in service and to direct the O.P to pay a sum of Rs.8,82,500/- and further directed to pay Rs.5,25,000/- at the rate of 24% per annum from 01.04.2016 till date of payment and also pay Rs.5,00,000/- towards compensation and to award cost of the proceedings.
2. The brief facts of the complainant’s case is that, O.P has formed a residential layout known as ‘Max Residency Phase-III” in Thindulu Village, Kundana Hobli, Devanahalli Taluk. On 5.1.2013 the O.P for allotted of site bearing No.21 measuring 30 X 40 feet on receiving a application fee of Rs.1,00,000/-. It was agreed to sell and purchase the said site for Rs.10,20,000/- and agreement to sell was executed on 09.05.2013. The complainant has paid Rs.5,25,000/- on different dates and different cheques acknowledged by the O.P. In terms of Agreement of sale dated 14.06.2013 the O.P was required to execute a registered sale deed in favour of complainant within 6 months from the date of execution of agreement of sale. Despite receipt of the aforesaid sums, till date the O.P has not registered the Sale Deed in favour of complainant as promised by them. Legal notice was also issued in this regard on 7.1.2016 demanding him to perform the conditions of the sale agreement. The same was served on the O.p on 9.1.2016, who has replied the same by informing him that they were some legal issues pending regarding the land on which layout to be formed its registration and the pendency of the case before the Hon’ble High Court. It is clear from the said legal notice that the O.p cannot sell the site agreed to and hence there is a deficiency in service. In the reply notice O.p informed him that he would deduct 15 % out of the amount paid in order to repay the amount/cancellation of the booking which is without any justification and hence he had to issue a rejoinder notice.
3. It is further contended that, he is a Software Engineer by profession and he has put in his hard earned money to have a house in Bengaluru. The O.P has duped him without giving a clear picture of the situation of the legal rights over the property. O.P cannot forfeit any money from the amount given by him since O.P has defaulted in honouring the terms and conditions of the agreement of sale. Hence the complaint.
3. Upon service of notice O.P appeared before the Forum and filed his version and denying averments and contents of complaint.
4. It is further contended in the version that complainant is not a consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act. He has not availed the service of the O.P for his livelihood. In order to benefit some third party he has booked a site. The amount given to him is not the hard earned money of the O.P. It is only given to him in order to investing the property and to make gain out of it. It is a benami transaction. This Forum has no jurisdiction to try and settle the matter. He is not a consumer. He cannot file this complaint. He has specifically intimated the complainant that he cannot cancel the order after booking the same. Law also do not recognize such cancellation. In the reply to the notice he has clearly stated that, he would pay the amount advanced by the complainant and he has to come and receive for which the complainant issued a rejoinder rather than coming and receiving the money.
5. In order to prove the case, the complainant and O.P filed their affidavit evidence. Perused the documents produced. Heard the counsels for the parties.
6. On the basis of the above pleadings and evidence of the parties, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT 1): Affirmative.
POINT 2): Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. The same has been objected by the O.P contending that he is not a consumer and he has invested the amount in real estate and that he is not entitle to the full amount paid by him in terms of the agreement of sale.
9. O.P has also filed his affidavit evidence reiterating the facts mentioned in its version.
10. On perusing the evidence of both the parties and documents produced it is admitted by O.P that complainant has booked site bearing No.20 in the layout formed by the O.P. by receiving a sum of Rs.5.02,000/- on different dates. The booking order, copy of receipt, copy of cheques and the agreement of sale and exchanges of notices clearly go to show that O.P has receive Rs.5,25,000/- from the complainant and in terms of the agreement of sale has not executed a sale deed in his favour which is clear violation of the terms and conditions of sale agreement. When O.P himself has not honoured the terms and conditions of the sale agreement he cannot expect to other party to follow the same in respect of refund of the amount advanced.
11. In view of this the O.P is bound to repay the advance amount received by him i.e. Rs.5,25,000/- to the complainant.
12. The counsel for the complainant has relied on Consumer Protection Reporter reported in 1991 page 532 reads thus:
“NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI,
Smt.Sneh Chadda - Appellant Vs. Delhi Development Authority – Respondent in First Appeal No.2 of 1990 – Decided on 04.04.1990
Consumer Protection Act, 1986 – Section 2 – Petitioner, an allottee of a flat from the Opposite Party is a ‘Consumer’ entitled to seek redress from the State Commission dismissing complaint on this preliminary ground is liable to be set aside.”
And in 1993 (2) Page 67 reads thus.
“STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
J.P. SINGH - - Appellant Vs. Improvement Trust, Ludhiana – Respondent in Appeal No.56 of 1991 – Decided on 10.09.1992
Consumer Protection Act, 1986 – Section 2(1) (d) & 2(1)(o) - Consumer – Complainant applied for a plot in the scheme and deposited Rs.1,000/- - He was declared unsuccessful by draw of lots – Claim for allotment of plot – Argument that complainant is just an applicant and not a consumer is fallacious – Complainant has hired services for consideration – Order of the District forum dismissing complaint on the preliminary ground that complainant is not a Consumer is liable to be set aside. 9Para 5 & 6).”
On perusing the same it becomes clear that the said decisions are also applicable also to present case on hand and hence the complainant is a consumer who is seeking services of the O.P for consideration. Hence O.P’s objections that complainant is not a consumer and this complaint is not maintainable cannot be accepted.
13. O.P has taken a contention that the amount paid by the complainant is not his hard earned money and it is a banami transaction. To substantiate the same he has not placed any materials before this Forum. Further if it is a benami transaction according to O.P., O.P has also participated knowingly well it is a benami transaction than O.P has to be prosecuted under the Benami Transaction Prohibition Act. In view of this we are of the opinion that complaint and the complainant are bound to succeed in this case. Hence we answer Point No:1 in the affirmative.
ON POINT No.2:
14. The complainant has claimed interest at the rate 24% per annum on Rs.5,25,000/- from 10.01.2013, the last installment paid by him is on 16.08.2013, hence we are of the opinion that the interest at the rate of 12% per annum if ordered to be paid from 16.08.2013 onwards till O.P pay to the complainant the full amount ends of justice will be met.
15. Though O.P has stated in the reply and in the version that he is ready and willing to repay the amount, he is not prudent enough to show his bona-fides that he is ready with money. If at all he was prudent he would have produced the cheque or demand draft to be paid to the complainant, he has not done so. In view of this it is to be held that it is only for the sake of defence O.P. is taking such a stand.
16. Due to inaction of the O.P in not forming the layout, in not executing the sale deed in respect of Site No.20, in not returning the advance amount received, there is deficiency in service rendered by the O.P which made the complainant to approach this forum by engaging counsel paying his professional fee and attending the Forum by spending money, time and energy for which he has to be compensated. Thought there is no clear cut evidence regarding what damage he has suffered, it cannot be held that he has not at all suffered any damage. The complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.50,000/- besides ordering him to pay a sum of Rs.25,000/- towards the legal expenses. Hence we answer Point No:2 in the partly affirmative and pass the following:
ORDER
1. The complaint is partly allowed with cost.
2. The OP i.e. Max Worth Reality India Limited Represented by its Deputy General Manager/Authorized Signatory is hereby directed to pay a sum of Rs.5,25,000/- along with interest at the rate of 12% per annum on the above sum from 16.08.2013 till payment of full amount.
3. Further O.P is also directed to pay Rs.50,000/- towards damages and Rs.25,000/- towards cost of the litigation expenses to the complainant.
4. The O.P. is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 16th Day of April 2018)
MEMBER PRESIDENT
*Rak
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 - Shashidhar U.G.– Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1: 5.1.2013:Copy of Booking Form.
Doc.No.2:5.1.2013: Copy of Receipt.
Doc.No.3: 10.1.2013:Copy of Cheque bearing No.266983.
Doc.No.4: 14.4.2013: Copy of Receipt.
Doc.No.5: 9.4.2013:Copy of DD bearing No.266985.
Doc.No.6:9.4.2013: Copy of cheque bearing No.266986.
Doc.No.7:9.5.2013: Copy of Sale Agreement
Doc.No.8:15.8.2013: Copy of Receipt.
Doc.No.9: 16.8.2013: Copy of cheque bearing No.266988.
Doc.No.10: 07.01.2016: Copy of Legal notice.
Doc.No.11: 9.1.2016: Reply Notice.
Doc.No.12:19.2.2016: Copy of 2nd Legal notice.
Doc.No.13: 20.2.2016 Copy of Postal receipt.
Doc.No.14 :18.04.2016: Copy of endorsement issued by the
Department of posts.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1 : Mr.Roopesh Sulegai, Deputy General Manager of O.P.
Copies of Documents produced on behalf of Opposite Party/s
- Nil-
MEMBER PRESIDENT
Date of Filing:30/04/2017
Date of Order:16/04/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 16TH DAY OF APRIL 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.678/2016
COMPLAINANT/S | | |
| | T.V.Meghana, Wife of Sri.U.G.Shashidhar, Aged about 32 years, Residing at No.6, Anugraha Nilaya, Behind Maramma Temple, Virupakshapura, Near Kodigehalli Railway Gate, Bengaluru 560 097. (Sri PNR Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| | Max Worth Realty India Limited, A company incorporated under The provision of the Companies Act 1956, having its office at “KMP House”, No.12/2, Yamuna Bai Road, Madhavnagar, Bengaluru-560 001. (Sri BCP Adv. for O.P) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (hereinafter referred to as O.P) alleging deficiency in service and to direct the O.P to pay a sum of Rs.81,000/- and further directed to pay Rs.50,000/- at the rate of 24% per annum from 01.04.2016 till date of payment and also pay Rs.50,000/- towards compensation and to award cost of the proceedings.
2. The brief facts of the complainant’s case is that, O.P has formed a residential layout known as ‘Max Orchid-III” in Devanahalli Taluk. On 15.8.2013 the O.P for allotted of site bearing No.341 measuring 30 X 40 feet on receiving a application fee of Rs.50,000/-. In terms of booking the site the O.P has not at all allotted the same. Though the complainant was always ready and willing to purchase the site but after receipt of the advance amount collected by the O.P without registering the site as promised. Complainant on several reminders and personally contacted the O.P requesting to register the sale deed in favour of complainant as promised, but O.P never did so. Left with no other alternative complainant’s email dated 22.06.2015 requested the O.P to cancel the booking and refund the amount ofRs.50,000/-. Despite of receipt fo the afore email further complainant writ several emails on different dates but O.P has neither responded nor refunded the sums received by it. Legal notice was also issued in this regard on 7.1.2016 demanding her to perform the conditions of the sale agreement. The same was served on the O.p on 9.1.2016, who has replied the same by informing her that they were some legal issues pending regarding the land on which layout to be formed its registration and the pendency of the case before the Hon’ble High Court. It is clear from the said legal notice that the O.p cannot sell the site agreed to and hence there is a deficiency in service. In the reply notice O.p informed her that he would deduct 15 % out of the amount paid in order to repay the amount/cancellation of the booking which is without any justification and hence he had to issue a rejoinder notice.
3. The O.P has duped her without giving a clear picture of the situation of the legal rights over the property. O.P cannot forfeit any money from the amount given by her since O.P has defaulted in honouring the terms and conditions of the agreement of sale. Hence the complaint.
3. Upon service of notice O.P appeared before the Forum and filed his version and denying averments and contents of complaint.
4. It is further contended in the version that complainant is not a consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act. He has not availed the service of the O.P for his livelihood. In order to benefit some third party he has booked a site. The amount given to him is not the hard earned money of the O.P. It is only given to him in order to investing the property and to make gain out of it. It is a benami transaction. This Forum has no jurisdiction to try and settle the matter. He is not a consumer. He cannot file this complaint. He has specifically intimated the complainant that he cannot cancel the order after booking the same. Law also do not recognize such cancellation. In the reply to the notice he has clearly stated that, he would pay the amount advanced by the complainant and he has to come and receive for which the complainant issued a rejoinder rather than coming and receiving the money.
5. In order to prove the case, the complainant and O.P filed their affidavit evidence. Perused the documents produced. Heard the counsels for the parties.
6. On the basis of the above pleadings and evidence of the parties, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT 1): Affirmative.
POINT 2): Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. The same has been objected by the O.P contending that she is not a consumer and she has invested the amount in real estate and that she is not entitle to the full amount paid by her in terms of the agreement of sale.
9. O.P has also filed his affidavit evidence reiterating the facts mentioned in its version.
10. On perusing the evidence of both the parties and documents produced it is admitted by O.P that complainant has booked site bearing No.20 in the layout formed by the O.P. by receiving a sum of Rs.50,000/- on different dates. The booking order, copy of receipt, copy of cheques and the agreement of sale and exchanges of notices clearly go to show that O.P has receive Rs.50,000/- from the complainant and in terms of the agreement of sale has not executed a sale deed in her favour which is clear violation of the terms and conditions of sale agreement. When O.P himself has not honoured the terms and conditions of the sale agreement he cannot expect to other party to follow the same in respect of refund of the amount advanced.
11. In view of this the O.P is bound to repay the advance amount received by her i.e. Rs.50,000/- to the complainant.
12. The counsel for the complainant has relied on Consumer Protection Reporter reported in 1991 page 532 reads thus:
“NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI,
Smt.Sneh Chadda - Appellant Vs. Delhi Development Authority – Respondent in First Appeal No.2 of 1990 – Decided on 04.04.1990
Consumer Protection Act, 1986 – Section 2 – Petitioner, an allottee of a flat from the Opposite Party is a ‘Consumer’ entitled to seek redress from the State Commission dismissing complaint on this preliminary ground is liable to be set aside.”
And in 1993 (2) Page 67 reads thus.
“STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
J.P. SINGH - - Appellant Vs. Improvement Trust, Ludhiana – Respondent in Appeal No.56 of 1991 – Decided on 10.09.1992
Consumer Protection Act, 1986 – Section 2(1) (d) & 2(1)(o) - Consumer – Complainant applied for a plot in the scheme and deposited Rs.1,000/- - He was declared unsuccessful by draw of lots – Claim for allotment of plot – Argument that complainant is just an applicant and not a consumer is fallacious – Complainant has hired services for consideration – Order of the District forum dismissing complaint on the preliminary ground that complainant is not a Consumer is liable to be set aside. (Para 5 & 6).”
On perusing the same it becomes clear that the said decisions are also applicable also to present case on hand and hence the complainant is a consumer who is seeking services of the O.P for consideration. Hence O.P’s objections that complainant is not a consumer and this complaint is not maintainable cannot be accepted.
13. O.P has taken a contention that the amount paid by the complainant is not her hard earned money and it is a banami transaction. To substantiate the same he has not placed any materials before this Forum. Further if it is a benami transaction according to O.P., O.P has also participated knowingly well it is a benami transaction than O.P has to be prosecuted under the Benami Transaction Prohibition Act. In view of this we are of the opinion that complaint and the complainant are bound to succeed in this case. Hence we answer Point No:1 in the affirmative.
ON POINT No.2:
14. The complainant has claimed interest at the rate 24% per annum on Rs.50,000/- from 15.08.2013, the last installment paid by her is on 15.08.2013, hence we are of the opinion that the interest at the rate of 12% per annum if ordered to be paid from 15.08.2013 onwards till O.P pay to the complainant the full amount ends of justice will be met.
15. Though O.P has stated in the reply and in the version that he is ready and willing to repay the amount, he is not prudent enough to show his bona-fides that he is ready with money. If at all he was prudent he would have produced the cheque or demand draft to be paid to the complainant, he has not done so. In view of this it is to be held that it is only for the sake of defence O.P. is taking such a stand.
16. Due to inaction of the O.P in not forming the layout, in not executing the sale deed in respect of Site No.20, in not returning the advance amount received, there is deficiency in service rendered by the O.P which made the complainant to approach this forum by engaging counsel paying her professional fee and attending the Forum by spending money, time and energy for which he has to be compensated. Thought there is no clear cut evidence regarding what damage he has suffered, it cannot be held that he has not at all suffered any damage. The complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.50,000/- besides ordering her to pay a sum of Rs.25,000/- towards the legal expenses. Hence we answer Point No:2 in the partly affirmative and pass the following:
ORDER
1. The complaint is partly allowed with cost.
2. The OP i.e. Max Worth Reality India Limited Represented by its Deputy General Manager/Authorized Signatory is hereby directed to pay a sum of Rs.50,000/- along with interest at the rate of 12% per annum on the above sum from 15.08.2013 till payment of full amount.
3. Further O.P is also directed to pay Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.
4. The O.P. is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 16th Day of April 2018)
MEMBER PRESIDENT
*Rak
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 T.V.Meghana – Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1: 15.8.2013:Copy of Booking Form.
Doc.No.2: 26.08.2013:Copy of Cheque bearing No.654552.
Doc.No.3: 15.8.2013: Copy of Receipt.
Doc.No.4: 22.6.2015:Copy of mail sent by the complainant for refund the booking amount to O.P.
Doc.No.5:7.1.2016: Copy of Legal notice.
Doc.No.6: 9.1.2016: Reply Notice.
Doc.No.7:19.2.2016: Copy of 2nd Legal notice.
Doc.No.8: 20.2.2016 Copy of Postal receipt.
Doc.No.9 :18.04.2016: Copy of endorsement issued by the
Department of posts.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1 : Mr.Roopesh Sulegai, Deputy General Manager of O.P.
Copies of Documents produced on behalf of Opposite Party/s
- Nil-
MEMBER PRESIDENT
